Free the Cuban Five!

By

July 13, 2010

Quite apart from Fidel Castro’s rare TV interview on Tuesday, there have recently been a number of encouraging developments in Cuba. A leading dissident, Elizardo Sanchez, the head of the Human Rights Commission, announced in June that the number of political prisoners had fallen to 167, the lowest number since the Cuban Revolution took power back in 1959. And then on July 7, after a meeting that included President Raúl Castro, Spanish Foreign Minister Miguel Angel Moratinos and Cardinal Jaime Ortega, the Archbishop of Havana, the Cuban government announced that over the next few months it would be releasing some fifty-two more prisoners. This was enough to prompt Guillermo Farinas, a prisoner who has been carrying on a hunger strike to demand the release of others, to call off his strike.

So far, credit for these developments goes largely to the Spanish government and to the Catholic Church, especially to Cardinal Ortega. Secretary of State Hillary Rodham Clinton described the moves as "welcome." Yes, but the United States could encourage that trend by releasing the so-called Cuban Five—something it should do anyway to help restore the image of the United States, which has been damaged by international condemnation of its handling of the case.

Who were the Cuban Five? They were members of the Cuban Intelligence Service who were sent to the United States not to spy on the US government or any of its entities but to penetrate certain Cuban exile organizations and gather information on terrorist activities they were carrying out against Cuba—information the Cubans would then provide to the FBI so that it could move to halt those activities. In June 1998 three FBI representatives were invited to Cuba to meet with Cuban counterparts. They returned with some sixty-four folders of pertinent information. The Cubans then waited for the United States to take action against the terrorists. But they waited in vain. Rather, the FBI, apparently able to determine from the evidence the identities of the sources, arrested the Cuban Five a few months later. In 2001 they went to trial in Miami, where anti-Castro sentiment was so strong there was no chance even of empaneling an impartial jury. Defense lawyers asked for a change of venue, arguing that without it, there could not be a fair trial. Incredibly, their request was denied.

In addition to the biased atmosphere in which the trial was held, prosecutors could present no evidence that the five had engaged in espionage or indeed any other crime, other than being the unregistered agents of a foreign power. So the prosecutors resorted to the time-worn ploy of charging them with "conspiracy" to commit illegal acts, which is what the government does when it has no evidence tying the accused to the commission of such acts. Evidence or no, all were convicted in 2001 and given long prison sentences. Worst of all was the case of Gerardo Hernández, who was accused of conspiracy to commit murder and given two consecutive life sentences—this in connection with the shooting down of the Brothers to the Rescue planes in February 1996, in which four were killed. Never mind that there was not a shred of evidence that Hernández was in any way involved.

Not surprisingly, given the questionable nature of the case against the five, in August 2005 three judges of the US Court of Appeals for the Eleventh District in Atlanta overturned the Miami court’s convictions and ordered a new trial outside Miami. Their arguments were devastating but did not sway the Bush administration. And so, on October 31, 2005, the US government requested that the entire appeals court, all twelve judges, review the findings of the three who had overturned the Miami court decision. This was done, and as expected, the ruling that had called for a new trial was reversed. On June 4, 2008, the appeals court upheld the convictions of the Miami court and remanded the case back to it. The will of the White House had been done.

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The next year, however, there was some hope that with a new resident in the White House, the way might be open for the case to be heard by the Supreme Court. But in May 2009, Barack Obama’s solicitor general, Elena Kagan, recommended that the request for a hearing be denied, and the following month it was. How unfortunate. The five were, to be sure, guilty of being the unregistered agents of a foreign power. But if that was their only crime (as it almost certainly was), they could have served out their sentences long ago and been back with their families. Instead, all have now been imprisoned for some twelve years under trying conditions. In all that time, for example, Gerardo Hernández and Rene Gonzalez have not been allowed a single visit from their wives. That is cruel and heartless punishment.

The case, meanwhile, has become something of an international cause célèbre, with widespread condemnation of the Miami court’s decision as arbitrary and unfair. That has been the expressed view of ten Nobel Prize winners, of hundreds of jurists, members of parliaments and various other organizations from all over the world, many of whom joined twelve amicus briefs asking the Supreme Court to review the case. And for the first time in history, the UN Human Rights Commission condemned the trial, noting that the Miami court could not possibly have enjoyed "the objectivity and impartiality that is required in order to conform to the standards of a fair trial."

The pain and anguish of the five and their families need not go on for yet more interminable years. Nor must the continuing damage to the US image. There is a near-term solution in which all sides could come out ahead: President Obama has the right, constitutionally, to commute the sentences. That may appear unlikely, given his solicitor general’s recommendation last year against a Supreme Court hearing. But given that there was never any evidence with which to convict the five, and given that bringing about the release of Cuban political prisoners has always been a US objective, the president should commute the sentences forthwith. The way would then be open to release them and allow them to return to Cuba. If that were to happen, the Cuban government should respond by releasing most of its remaining political prisoners—with the exact number and the disposition of those released to be agreed upon. Neither government would suffer any adverse consequences from such a reciprocal release. On the contrary, both would be applauded and their international images enhanced.

And for good measure, the case of Alan Gross, the American citizen arrested last December in Cuba and suspected of subversive activities, should be included. The Cubans should release him—and Washington could encourage that by formally suspending any further programs "to promote democracy in Cuba" that do not follow normal diplomatic protocol and have host country authorization.

Wayne S. Smith Wayne S. Smith, wsmith@ciponline.org, now a senior fellow at the
Center for International Policy in Washington, DC, is a longtime Cuba
expert and former chief of the US Interests Section in Havana
(1979-82).